781.708.4445

wmlevine@levinedisputeresolution.com

Divorce Mediation Blog

DeMarco v. DeMarco: Three Surprising Things

Wednesday, January 13, 2016

Three rarities --

    -- a “Hail Mary” pass that works,
    -- a trial court order that makes news, and
    -- a judge who takes the hit for a litigant --

-- all converge in Judge John D. Casey’s recent decision in De Marco v. De Marco, for the Suffolk Probate and Family Court, making it remarkable beyond its outcome.

Michael DeMarco asked Judge Casey to terminate his alimony obligation to Katherine DeMarco, under M.G.L., ch. 208, §49(f), the social security full retirement age provision of the Alimony Reform Act (eff. 3/1/12). The judge advised the parties at the start of trial that he believed the result to be foregone: that §49(f) applies to all cases, and therefore, DeMarco alimony would end. The attorneys adopted the court’s view and devised a surviving settlement agreement with a terminal lump sum payment, and the end of periodic alimony.

Then, the Supreme Judicial Court (SJC) decided to the contrary, in Chin v. Meriott and two companion cases, ruling that §49(f) applies prospectively only, to those alimony payors whose divorce judgments followed March 1, 2012. While it is fair to say that Judge Casey’s belief reflected a consensus view of the bench and bar at the time, the SJC proved it flawed. It is not the first time that an appellate court nixed a trial judge’s view of the law, and certainly won’t be the last. The law develops, accordingly.

What makes this case interesting is that:

  1. Ms. DeMarco, asked Judge Casey to vacate the judgment that arose from the parties’ settlement contract, by way of a motion under Mass. R. Dom. Rel. P. Rule 60 (b) (5) and (6), which is the Hail Mary pass of litigation. Vacating an established judgment by mere motion is a last resort relief for a litigant. Every veteran litigator has weighed the odds of bringing one against the chance of being assessed with fees for being wrong; many have taken their shot; and few have succeeded.
  2. Trial court divorce decisions are rarely noted outside of the parties themselves, and a bit of occasional gossip, especially motion practice. After all, it is appellate work that creates precedent, shaping the law, debate, future strategies and outcomes. Unusually, this case was the lead story in Massachusetts Lawyers Weekly, and the buzz persists.
  3. Judge Casey fell on his sword, where he could easily have demurred. He gave the parties honest direction, without any warranty of perfection. Ms. DeMarco did not have to accept the judge’s colloquy. She could have tried the case and forced Judge Casey to apply the law as he saw it; and then challenge him on appeal. Yet, the judge ruled that his was an incorrect interpretation of the statute, upon which Ms. DeMarco had “detrimentally relied”, and vitiated the judgment.

The fact that the judge allowed the Rule 60 to negate a contract of the parties, as distinguished from a judgment that he had, himself, written, is substantively remarkable – and potentially dangerous – as attorney David H. Lee (disclosure: Mr. Lee is William M. Levine’s former longtime law partner) pointed out in the Lawyers Weekly piece. Certainly, it is a challenge to the policy of finality. It is also understandable that Judge Casey, always a gentleman, felt responsible for the harsh result to Ms. DeMarco.

This was no simple “mulligan”, but one with combined factors that we won’t likely see again soon.



Get e-mail notifications of new blog posts! Enter email address below.:



Delivered by FeedBurner

other articles


recent posts


tags

Levine Dispute Resolution Center LLC divorce agreement family and probate law disputes self-adjusting alimony health coverage arbitrator divorce and family law mediators Cohabitation Levine Dispute Resolutions divorce mediators divorce and family law divorce arbitrators COLA support orders medical benefits Massachusetts Alimony Reform Act divorce process family law facilitated negotiations arbitrators Act Reforming Alimony in the Commonwealth Child Support Guidelines family mediation divorce mediator Massachusetts alimony and child support disputes rehabilitative alimony alimony statute divorce litigation Uniform Arbitration Act divorce arbitrator alimony law Same Sex Marriage divorced Alimony Reform Act The Seven Sins of Alimony Boston family support divorce judgment alimony orders Self-adjusting alimony orders child support divorce mediation Obamacare lawyers divorce mediations DOMA mediations Baseball Massachusetts special master resolve disputes Massachusetts divorce mediators IRC §2704 Massachusetts lawyers med-arb Major League Baseball Arbitration pre-ARA alimony mediator alimony reform legislation family law mediation General term alimony family law arbitrator how baseball arbitration works private dispute resolution fraud Divorce Massachusetts divorce lawyers alimony med/arb Levine Dispute Resolution Center Levine Dispute Resolution annulment Family Law Arbitration lawyer Massachusetts Lawyers Weekly conciliation Massachusetts alimony litigation Baseball Players high-risk methodology health insurance SJC separation MLB labor agreement dispute resolution Chouteau Levine arbitration mediators Defense of Marriage Act traditional negotiations Matrimonial Arbitration lawyer-attended mediation mediation LDRC divorce lawyers divorce arbitration Divorce Agreements family law arbitrators Baseball Arbitration